Void and Voidable Marriages

There are a number of possible reasons why a marriage may be considered invalid. Sometimes, irregularities or absence of essential requisites for its solemnization such as license, solemnization, and authentication (California Family Code § 306), may make the marriage invalid from its inception.

Another reason could be that the marriage is incestuous, regardless whether their relationship is legitimate or illegitimate. Fam. C. § 2200 defines incestuous marriages as those that are between the following people:

  • parents and children,
  • ancestors and descendants of every degree,
  • and between brothers and sisters of the half as well as the whole blood, and
  • between uncles and nieces or aunts and nephews

And any subsequent marriage entered into by a married person with any person who is not their husband or wife is bigamous, and may also be considered as either void or voidable, unless certain conditions are met.

Fam. C. § 2201(a)
“A subsequent marriage contracted by a person during the life of a former husband or wife of the person, with a person other than the former husband or wife, is illegal and void from the beginning unless:

(1) The former marriage has been dissolved or adjudged a nullity before the date of the subsequent marriage.

(2) The former husband or wife (i) is absent, and not known to the person to be living for the period of five successive years immediately preceding the subsequent marriage, or (ii) is generally reputed or believed by the person to be dead at the time the subsequent marriage was contracted.”

The innocent spouse may obtain relief through a nullity proceeding, where the validity of a marriage may be challenged by the contestant, and the burden lies on him/her to prove that their marriage is void or voidable.

Fam. C. § 2250. (a)
“A proceeding based on void or voidable marriage is commenced by filing a petition entitled “In re the marriage of ____ and ____” which shall state that it is a petition for a judgment of nullity of the marriage.”

The difference between an action for dissolution and that of nullity is that unlike a dissolution action, which aims to terminate a valid marriage, an action for nullity inquires on whether such marriage actually existed. Once a judgment for nullity is granted by the court, that marriage is treated as if a valid marriage never existed; although there are cases where support and property interests may still attach.

Fam. C. § 2251
“(a) If a determination is made that a marriage is void or voidable and the court finds that either party or both parties believed in good faith that the marriage was valid, the court shall:

(1) Declare the party or parties to have the status of a putative spouse.

(2) If the division of property is in issue, divide, in accordance  with Division 7 (commencing with Section 2500), that property acquired during the union which would have been community property or quasi-community property if the union had not been void or voidable. This property is known as “quasi-marital property”.

(b) If the court expressly reserves jurisdiction, it may make the property division at a time after the judgment.”

The action for nullity generally takes a distinct and different course than an action for dissolution of marriage, which is why it is advisable to work with a lawyer who is an expert in annulment proceedings.

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